PROPOSED law changes which would see patients in medical negligence cases prevented from using official apology letters as evidence are due to be scrutinised.
A scrutiny sub-panel has been set up to review draft legislation to regulate hospital, mental health and ambulance services – which is due for debate next month.
The panel will consider the rationale and implications of the changes, the enforceability of the regulations, the shift in legal responsibilities, the proportionality and safeguards of the new powers, the readiness of service providers, and the transitional arrangements in place.
Deputy Tom Coles, who will chair the sub-panel, said this is an “extremely important piece of legislation”.
He added: “It is also a complicated issue and one that impacts not only the public, but also the staff who provide these services and the regulatory body itself.”
The sub-panel will also consider the implications of plans within the legislation to introduce a statutory “duty of candour” for regulated health and care providers.
If approved, the law would require services to be open and transparent with patients when something goes wrong – including offering a written apology.
Embedded in the proposals, which total 63 pages, is also a clause that any apologies issued as a result of the duty of candour cannot be used as evidence of liability in legal proceedings.
It reads: “Apologising is not an admission of liability, and this is put beyond doubt by Regulation 6(11), which would prevent the fact of an apology being made under this requirement being admissible as evidence when determining liability in connection with an incident.”
This goes further than the equivalent UK law which states that an apology “shall not of itself amount to an admission of negligence or breach of statutory duty”.
This means an apology can still be referred to or produced in court, even if it does not, on its own, amount to legal liability. It does not make apologies inadmissible as evidence.
Deputy Hilary Jeune, who will sit on the sub-panel, previously told the JEP she would be seeking justification from Environment Minister Steve Luce, who lodged the proposed law.
She said: “For me as a standalone Deputy, I would question why we would need to go further than UK – especially as that is quite an unusual move and would question what is the justification for it.”
And Deputy Jonathan Renouf, who is also a sub-panel member, said he was was “surprised” to see the changes propose a “more restrictive approach” than the UK, making it harder for Islanders to use duty of candour letters in legal proceedings.
“This is something that the scrutiny panel looking at the proposed amendments to the regulations will want to examine very closely, to ensure they work in the best interests of Islanders,” he said.
Former Health Minister Karen Wilson will be the vice-chair of the sub-panel, which will also invite submissions from private sector service providers who fall under the new regulations.
